IN THE CASE OF:	  

		BOARD DATE:	  12 May 2015

		DOCKET NUMBER:  AR20150000950 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests reconsideration of his earlier request to upgrade his discharge under other than honorable conditions (UOTHC) to honorable under the new Department of Defense guidance.

2.  The applicant states:

	a.  He is a Vietnam combat veteran with significant combat exposure which caused his post-traumatic stress disorder (PTSD).  The resulting disciplinary problems and absence without leave were the direct result of his PTSD.

	b.  Following completion of his training, he was issued orders to Vietnam, granted leave, and ordered to report back on 4 May 1968.  While he was on leave, a hometown friend was killed in action in Vietnam and his funeral was not held until 22 May 1968.  He stayed home to attend the funeral and he reported back to his unit on 4 June 1968.  On 20 June 1968, he was tried by summary court-martial.

	c.  He performed combat duties in Vietnam, including killing enemy combatants, dealing with bodies of dead comrades, and taking significant enemy fire.

	d.  On or about 17 January 1969, one of his closest comrades was killed in a medical evacuation helicopter crash.  The very next day, he fell off a bunker and broke his right arm.  He reported to the medic and the medic told him to leave on the medical evacuation flight in the morning.  When his lieutenant saw him going to the medical evacuation helicopter instead of the helicopters taking the company to the field, the lieutenant called him a coward because he wasn't going to the field.  They had words and the applicant got on the medical evacuation helicopter and went to the aid station.  He was court-martialed when he returned to his unit.

	e.  When he returned to the United States from Vietnam on 7 July 1969, he was granted 45 days of leave.  While on leave, he isolated himself from friends and family.  He was having nightmares.  He did not report back to his unit on time because his combat experiences were driving him crazy.  He was court-martialed on 7 November 1969.

	f.  He was court-martialed again for being absent without leave (AWOL) from December 1969 to February 1970.

	g.  While pending discharge, he snapped and walked off the installation to get as far away from the Army as possible.  He went to Los Angeles where he joined a boxing gym and began fighting professionally.  The only way he found to handle his mental dysfunction was through exercise and aggression.  Approximately a year later, he learned from his sister the Federal Bureau of Investigation was looking for him because he was AWOL.  In February 1972, he was picked up by the police department on a warrant for a trespassing charge.  The Army came and got him when they found out he was in jail.

	h.  He was discharged UOTHC on 30 March 1972.  In 1977, he received an upgraded discharge to general under honorable conditions.

3.  The applicant provides:

* service personnel records
* discharge packet
* DD Form 214 (Report of Separation from Active Duty)
* DD Form 215 (Correction to DD Form 214)
* letter from the Vet Center, Culver City, CA, dated October 2004
* letter from a psychologist at the Department of Veterans Affairs (VA), dated 19 November 2004
* letter from a clinical social worker, dated 4 March 2015

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20130015917 on 4 June 2014.

2.  The applicant provided a letter from a VA psychologist, dated 19 November 2004, who diagnosed him with chronic PTSD.  He also provided a letter from a clinical social worker, dated 4 March 2015, which shows he was diagnosed with chronic, severe PTSD.  The clinical social worker stated his discharge is directly related to his untreated PTSD and his PTSD is directly related to his service with the Army in Vietnam.  This medical documentation is new evidence that warrants consideration by the Board at this time.

3.  The applicant enlisted in the Regular Army on 2 October 1967 for 3 years.  He completed his training and was awarded military occupational specialty 11B (light weapons infantryman).  He was transferred to Vietnam on 22 June 1968.

4.  In June 1968, he was convicted by a summary court-martial of being AWOL from 4 May to 4 June 1968.

5.  In March 1969, he was convicted by a special court-martial of behaving with disrespect toward a superior commissioned officer.

6.  He departed Vietnam on 9 July 1969.

7.  In November 1969, he was convicted by a summary court-martial of being AWOL from 10 to 21 October 1969.

8.  In March 1970, he was convicted by a special court-martial of being AWOL from 6 December 1969 to 17 February 1970.

9.  In May 1970, he was convicted by a special court-martial of being AWOL from 20 February 1970 to 8 April 1970 and from 14 April 1970 to 22 April 1970.

10.  He was AWOL from 7 September 1970 to 17 February 1972.  On 23 February 1972, charges were preferred against him for this AWOL period.

11.  On 1 March 1972 after consulting with counsel, he submitted a request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.  He indicated he understood he could be discharged UOTHC and be furnished an Undesirable Discharge Certificate, he might be deprived of many or all Army benefits, he might be ineligible for many or all benefits administered by the VA, and he might be deprived of his rights and benefits as a veteran under both Federal and State laws.  He also acknowledged he understood he might encounter substantial prejudice in civilian life because of an undesirable discharge.  He elected to submit a statement on his own behalf.  In summary, he stated:

* he had one Article 15 for being AWOL, one summary court-martial, and three special courts-martial for being AWOL and insubordination
* he should be discharged from the service for his good as well as others
* he is no longer capable of taking orders
* he could not adjust to this life
* it is impossible for him to stress how much he wants this discharge
* he would go AWOL again to get discharged
* based on his 12-month tour of duty in Vietnam, he would like a general discharge

14.  On 30 March 1972, the separation authority approved the applicant's request for discharge and directed the issuance of an Undesirable Discharge Certificate.

15.  On 5 April 1972 he was discharged for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, and issued an Undesirable Discharge Certificate.  He completed 2 years, 6 months, and 4 days of total active service with 720 days of lost time.

16.  In June 1977, the Army Discharge Review Board (ADRB) upgraded his discharge to general under honorable conditions under the provisions of the Special Discharge Review Program (SDRP).

17.  In June 1979 after having re-reviewed the applicant's case as required by Public Law 95-126, the ADRB determined not to affirm the recharacterization of his discharge.

18.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 10 of the version in effect at the time provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service at any time after court-martial charges were preferred.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged, the type of discharge normally given under the provisions of this chapter, the loss of VA benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  An Undesirable Discharge Certificate would normally be furnished to an individual who was discharged for the good of the service.

	b.  Paragraph 3-7a provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate.

	c.  Paragraph 3-7b provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.

19.  The Department of the Army SDRP was based on a memorandum from Secretary of Defense Brown and is often referred to as the "Carter Program."  It mandated the upgrade of individual cases in which the applicant met one of several specified criteria and when the separation was not based on a specified compelling reason to the contrary.  The ADRB had no discretion in such cases other than to decide whether recharacterization to fully honorable as opposed to a general discharge was warranted in a particular case.  Absentees who returned to military control under the program were eligible for consideration after they were processed for separation.  Individuals could have their discharges upgraded if they met any one of the following criteria:  wounded in action, received a military decoration other than a service medal, successfully completed an assignment in Southeast Asia, completed alternate service, received an honorable discharge from a previous tour of military service, or completed alternate service or were excused there from in accordance with Presidential Proclamation 4313 of 16 September 1974.  Compelling reasons to the contrary to deny discharge upgrade were desertion/AWOL in or from the combat area, discharge based on a violent act of misconduct, discharge based on cowardice or misbehavior before the enemy, or discharge based on an act or misconduct that would be subject to criminal prosecution under civil law.

20.  Public Law 95-126 provided for a "Relook Program."  All cases upgraded from under other than honorable conditions under the SDRP or Presidential Proclamation programs (and their extensions) required a second review and affirmation (or not) under uniform standards.

21.  PTSD can occur after someone goes through a traumatic event like combat, assault, or disaster.  The Diagnostic and Statistical Manual of Mental Disorders (DSM) is published by the American Psychiatric Association (APA) and provides standard criteria and common language for the classification of mental disorders.  In 1980, the APA added PTSD to the third edition of its DSM nosologic classification scheme.  Although controversial when first introduced, the PTSD diagnosis has filled an important gap in psychiatric theory and practice.  From a historical perspective, the significant change ushered in by the PTSD concept was the stipulation that the etiological agent was outside the individual (i.e., a traumatic event) rather than an inherent individual weakness (i.e., a traumatic neurosis).  The key to understanding the scientific basis and clinical expression of PTSD is the concept of "trauma."

22.  PTSD is unique among psychiatric diagnoses because of the great importance placed upon the etiological agent, the traumatic stressor.  In fact, one cannot make a PTSD diagnosis unless the patient has actually met the "stressor criterion," which means that he or she has been exposed to an event that is considered traumatic.  Clinical experience with the PTSD diagnosis has shown, however, that there are individual differences regarding the capacity to cope with catastrophic stress.  Therefore, while most people exposed to traumatic events do not develop PTSD, others go on to develop the full-blown syndrome.  Such observations have prompted the recognition that trauma, like pain, is not an external phenomenon that can be completely objectified.  Like pain, the traumatic experience is filtered through cognitive and emotional processes before it can be appraised as an extreme threat.  Because of individual differences in this appraisal process, different people appear to have different trauma thresholds, some more protected from and some more vulnerable to developing clinical symptoms after exposure to extremely stressful situations.

23.  The DSM fifth edition was released in May 2013.  This revision includes changes to the diagnostic criteria for PTSD and acute stress disorder.  The PTSD diagnostic criteria were revised to take into account things that have been learned from scientific research and clinical experience.  The revised diagnostic criteria for PTSD include a history of exposure to a traumatic event that meets specific stipulations and symptoms from each of four symptom clusters:  intrusion, avoidance, negative alterations in cognitions and mood, and alterations in arousal and reactivity.  The sixth criterion concerns duration of symptoms, the seventh assesses functioning, and the eighth criterion clarifies symptoms as not attributable to a substance or co-occurring medical condition.

	a.  Criterion A – Stressor:  The person was exposed to death, threatened death, actual or threatened serious injury, or actual or threatened sexual violence, as follows (one required):

		(1)  direct exposure;

		(2)  witnessing, in person;

		(3)  indirectly, by learning that a close relative or close friend was exposed to trauma.  If the event involved actual or threatened death, it must have been violent or accidental; and/or

		(4)  repeated or extreme indirect exposure to aversive details of the event(s), usually in the course of professional duties (e.g., first responders, collecting body parts; professionals repeatedly exposed to details of child abuse).  This does not include indirect non-professional exposure through electronic media, television, movies, or pictures.

	b.  Criterion B – Intrusion Symptoms:  The traumatic event is persistently reexperienced in the following way(s) (one required):

		(1)  recurrent, involuntary, and intrusive memories;

		(2)  traumatic nightmares;

		(3)  dissociative reactions (e.g., flashbacks) which may occur on a continuum from brief episodes to complete loss of consciousness;

		(4)  intense or prolonged distress after exposure to traumatic reminders; and/or

		(5)  marked physiologic reactivity after exposure to trauma-related stimuli.

	c.  Criterion C – Avoidance:  Persistent effortful avoidance of distressing trauma-related stimuli after the event (one required):

		(1)  trauma-related thoughts or feelings and/or

		(2)  trauma-related external reminders (e.g., people, places, conversations, activities, objects, or situations).

	d.  Criterion D – Negative Alterations in Cognitions and Mood:  Negative alterations in cognitions and mood that began or worsened after the traumatic event (two required):

		(1)  inability to recall key features of the traumatic event (usually dissociative amnesia; not due to head injury, alcohol, or drugs);

		(2)  persistent (and often distorted) negative beliefs and expectations about oneself or the world (e.g., "I am bad," "the world is completely dangerous");

		(3)  persistent distorted blame of self or others for causing the traumatic event or for resulting consequences;

		(4)  persistent negative trauma-related emotions (e.g., fear, horror, anger, guilt, or shame);

		(5)  markedly diminished interest in (pre-traumatic) significant activities, feeling alienated from others (e.g., detachment or estrangement); and/or

		(6)  constricted affect – persistent inability to experience positive emotions.

	e.  Criterion E – Alterations in Arousal and Reactivity:  Trauma-related alterations in arousal and reactivity that began or worsened after the traumatic event (two required):

		(1)  irritable or aggressive behavior,

		(2)  self-destructive or reckless behavior,

		(3)  hypervigilance,

		(4)  exaggerated startle response,

		(5)  problems in concentration, and/or

		(6)  sleep disturbance.

	f.  Criterion F – Duration:  Persistence of symptoms (in Criteria B, C, D, and E) for more than 1 month.

	g.  Criterion G – Functional Significance:  Significant symptom-related distress or functional impairment (e.g., social, occupational).

	h.  Criterion H – Exclusion:  Disturbance is not due to medication, substance use, or other illness.

24.  As a result of the extensive research conducted by the medical community and the relatively recent issuance of revised criteria regarding the causes, diagnosis, and treatment of PTSD, the Department of Defense acknowledges that some Soldiers who were administratively discharged under other than honorable conditions may have had an undiagnosed condition of PTSD at the time of their discharge.  It is also acknowledged that in some cases this undiagnosed condition of PTSD may have been a mitigating factor in the Soldiers' misconduct which served as a catalyst for their discharge.  Research has also shown that misconduct stemming from PTSD is typically based upon a spur of the moment decision resulting from temporary lapse in judgment; therefore, PTSD is not a likely cause for either premeditated misconduct or misconduct that continues for an extended period of time.

25.  In view of the foregoing, on 3 September 2014 the Secretary of Defense directed the Service Discharge Review Boards (DRB's) and Service Boards for Correction of Military/Naval Records (BCM/NR's) to carefully consider the revised PTSD criteria, detailed medical considerations, and mitigating factors when taking action on applications from former service members administratively discharged UOTHC and who have been diagnosed with PTSD by a competent mental health professional representing a civilian healthcare provider to determine if it would be appropriate to upgrade the character of the applicant's service.

26.  BCM/NR's are not courts, nor are they investigative agencies.  Therefore, the determinations will be based upon a thorough review of the available military records and the evidence provided by each applicant on a case-by-case basis.  When determining if PTSD was the causative factor for an applicant's misconduct and whether an upgrade in character is warranted, the following factors must be carefully considered:

* is it reasonable to determine that PTSD or PTSD-related conditions existed at the time of discharge?
* does the applicant's record contain documentation of the occurrence of a traumatic event during the period of service?
* does the applicant's military record contain documentation of a diagnosis of PTSD or PTSD-related symptoms?
* did the applicant provide documentation of a diagnosis of PTSD or PTSD-related symptoms rendered by a competent mental health professional representing a civilian healthcare provider?
* was the applicant's condition determined to have existed prior to military service?
* was the applicant's condition determined to be incurred during or aggravated by military service?
* do mitigating factors exist in the applicant's case?
* did the applicant have a history of misconduct prior to the occurrence of the traumatic event?


* was the applicant's misconduct premeditated?
* how serious was the misconduct?

27.  Although the Department of Defense acknowledges that some Soldiers who were administratively discharged under other than honorable conditions may have had an undiagnosed condition of PTSD at the time of their discharge, it is presumed that they were properly discharged based upon the evidence that was available at the time.  Conditions documented in the record that can reasonably be determined to have existed at the time of discharge will be considered to have existed at the time of discharge.  In cases in which PTSD or PTSD-related conditions may be reasonably determined to have existed at the time of discharge, those conditions will be considered potential mitigating factors in the misconduct that caused the UOTHC service characterization.  BCM/NR's will exercise caution in weighing evidence of mitigation in cases in which serious misconduct precipitated a discharge with a character of service of UOTHC.  Potentially mitigating evidence of the existence of undiagnosed combat-related PTSD or PTSD-related conditions as a causative factor in the misconduct resulting in discharge will be carefully weighed against the severity of the misconduct.  PTSD is not a likely cause of premeditated misconduct.  BCM/NR's will also exercise caution in weighing evidence of mitigation in all cases of misconduct by carefully considering the likely causal relationship of symptoms to the misconduct.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's voluntary request for separation for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, was administratively correct and conformed with applicable regulations in effect at the time.

2.  His undesirable discharge was upgraded to general under honorable conditions as a result of the SDRP review in 1977.  In 1979, his general discharge was not affirmed by the ADRB in accordance with Public Law 95-126.

3.  At the time of his discharge, PTSD was largely unrecognized by the medical community and DOD.  However, both the medical community and DOD now have a more thorough understanding of PTSD and its potential to serve as a causative factor in a Soldier's misconduct when the condition is not diagnosed and treated in a timely fashion.

4.  Soldiers who suffered from PTSD and were separated solely for misconduct subsequent to a traumatic event warrant careful consideration for the possible recharacterization of their overall service.

5.  The applicant contends his Vietnam combat service caused his PTSD and he provided a letter from a VA psychologist who diagnosed him with severe PTSD in November 2004.  In addition, a clinical social worker states his discharge is directly related to his untreated PTSD and his PTSD is directly related to his service with the Army in Vietnam.

6.  Since the evidence suggests his PTSD may have been a contributing factor in the misconduct that led to his discharge, there is a sufficient basis to affirm his general discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

_____X___  ___X_____  ___X_____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is sufficient to warrant amendment of the ABCMR's decision in Docket Number AR20130015917, dated 4 June 2014.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing his general discharge under the provisions of the SDRP was affirmed.

2.  The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to upgrading his character of service to fully honorable.



      ____________X_____________
                  CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20150000950



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ABCMR Record of Proceedings (cont)                                         AR20150000950



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